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The art of European Union case-law

ECJ, C-54/07 – Feryn; Implications of a discrimination in terms of the recruitment process

ECJ’s interpretation of Community law must be useful to the national court

 It should be noted, at the outset, that Article 234 EC does not empower the Court to apply rules of Community law to a particular case, but only to rule on the interpretation of the EC Treaty and of acts adopted by European Community institutions (see, inter alia, Case 100/63 van der Veen [1964] ECR 565, 572, and Case C‑203/99 Veedfald [2001] ECR I‑3569, paragraph 31). The Court may, however, in the framework of the judicial cooperation provided for by that article and on the basis of the material presented to it, provide the national court with an interpretation of Community law which may be useful to it in assessing the effects of one or other of its provisions (Case 20/87 Gauchard [1987] ECR 4879, paragraph 5, and Joined Cases C‑515/99, C‑519/99 to C‑524/99 and C‑526/99 to C‑540/99 Reisch and Others [2002] ECR I‑2157, paragraph 22). (C-54/07, par.19)

Public statements that constitute direct discrimination; an identification of the victim is not required

Nevertheless, it cannot be inferred from (…) that the lack of an identifiable complainant leads to the conclusion that there is no direct discrimination within the meaning of Directive 2000/43. The aim of that directive, as stated in recital 8 of its preamble, is ‘to foster conditions for a socially inclusive labour market’. For that purpose, Article 3(1)(a) states that the directive covers, inter alia, selection criteria and recruitment conditions. (C-54/07, par.23)

 The fact that an employer declares publicly that it will not recruit employees of a certain ethnic or racial origin, something which is clearly likely to strongly dissuade certain candidates from submitting their candidature and, accordingly, to hinder their access to the labour market, constitutes direct discrimination in respect of recruitment within the meaning of Directive 2000/43. The existence of such direct discrimination is not dependant on the identification of a complainant who claims to have been the victim. (C-54/07, par.25)

Distinguishing direct discrimination (the conceptual requirement) from the legal procedures (the practical minimum) implies a space for Member States to introduce higher protection in that regard.

The question of what constitutes direct discrimination within the meaning of Directive 2000/43 must be distinguished from that of the legal procedures provided for in Article 7 of that directive for a finding of failure to comply with the principle of equal treatment and the imposition of sanctions in that regard. Those legal procedures must, in accordance with the provisions of that article, be available to persons who consider that they have suffered discrimination. However, the requirements of Article 7 of Directive 2000/43 are, as stated in Article 6 thereof, only minimum requirements and the Directive does not preclude Member States from introducing or maintaining provisions which are more favourable to the protection of the principle of equal treatment. (C-54/07, par.26)

It is up to the national court to assess according to the national legislation, whether an actio popularis in the name of employment equality is permitted.

Consequently, Article 7 of Directive 2000/43 does not preclude Member States from laying down, in their national legislation, the right for associations with a legitimate interest in ensuring compliance with that directive, or for the body or bodies designated pursuant to Article 13 thereof, to bring legal or administrative proceedings to enforce the obligations resulting therefrom without acting in the name of a specific complainant or in the absence of an identifiable complainant. It is, however, solely for the national court to assess whether national legislation allows such a possibility. (C-54/07, par.27)

The presumption of Discrimination; the defendant carries the burden of proof

Article 8 of Directive 2000/43 states in that regard that, where there are facts from which it may be presumed that there has been direct or indirect discrimination, it is for the defendant to prove that there has been no breach of the principle of equal treatment. The precondition of the obligation to adduce evidence in rebuttal which thus arises for the alleged perpetrator of the discrimination is a simple finding that A PRESUMPTION OF DISCRIMINATION has arisen on the basis of established facts. (C-54/07, par.30)

Public statements give rise to the presumption

Statements by which an employer publicly lets it be known that, under its recruitment policy, it will not recruit any employees of a certain ethnic or racial origin may constitute facts of such a nature as to give rise to a presumption of a discriminatory recruitment policy. (C-54/07, par.31)

The content of the adduced evidence

It is, thus, for that employer to adduce evidence that it has not breached the principle of equal treatment, which it can do, inter alia, by showing that the actual recruitment practice of the undertaking does not correspond to those statements. (C-54/07, par.32)

The national court will assess the sufficiency of the evidence

It is for the national court to verify that the facts alleged against that employer are established and to assess the sufficiency of the evidence which the employer adduces in support of its contentions that it has not breached the principle of equal treatment. (C-54/07, par.33)

The scope of the sanctions

Article 15 of Directive 2000/43 confers on Member States responsibility for determining the rules on sanctions for breaches of national provisions adopted pursuant to that directive. Article 15 specifies that those sanctions must be effective, proportionate and dissuasive and that they may comprise the payment of compensation to the victim. (C-54/07, par.36)

The scope of discretion granted to Member States; de minimis EU requirements

Article 15 of Directive 2000/43 thus imposes on Member States the obligation to introduce into their national legal systems measures which are sufficiently effective to achieve the aim of that directive and to ensure that they may be effectively relied upon before the national courts in order that judicial protection will be real and effective. Directive 2000/43 does not, however, prescribe a specific sanction, but leaves Member States free to choose between the different solutions suitable for achieving its objective. (C-54/07, par.37)

The form of the sanctions

If it appears appropriate to the situation at issue in the main proceedings, those sanctions may, where necessary, include a finding of discrimination by the court or the competent administrative authority in conjunction with an adequate level of publicity, the cost of which is to be borne by the defendant. They may also take the form of a prohibitory injunction, in accordance with the rules of national law, ordering the employer to cease the discriminatory practice, and, where appropriate, a fine. They may, moreover, take the form of the award of damages to the body bringing the proceedings. (C-54/07, par.39)


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